A16-year-old boy comes before a court and pleads guilty to a serious assault. Under the Baillieu government's laws, the judge or magistrate must sentence the youth to a term of imprisonment in a youth detention centre. But the court has heard that the young man has a history of mental illness, a horrific familial background, learning difficulties and has never committed an offence prior to the assault. Can a judge or magistrate be said to be upholding the law, which they are bound to do, by sending the youth to prison?
This is the position Victorian judges will find themselves in if Attorney-General Robert Clark has his way and makes good his promise last week to make jail mandatory - that's what youth training centres are in reality - for 16 and 17-year-olds who commit serious assaults.
Having to deprive a person of the most fundamental of human rights - liberty - irrespective of the person's individual circumstances inevitably troubles judicial officers because it turns them into rubber stamps. It is why judges in the Northern Territory, most recently Justice Judith Kelly on May 20, have made it abundantly clear when sentencing impoverished Indonesian fisherman who are caught under people smuggling laws which provide for mandatory jail terms, that they would not send the person to jail for that period if they were freed from the shackles of the law by which they were bound.
In a democratic society, courts are equal partners with the executive and the Parliament. They are the bulwark against the excesses of the other two. Mandatory sentencing removes the power to adjudicate. Or, as Desmond Manderson and Naomi Sharp put it some years ago, "courts forfeit their claim to be acting judicially".
The shackling of Victoria's judges and magistrates through mandatory sentencing in any form is a crude assault by the executive and the Parliament (although the latter is simply the lackey of the former, because the Baillieu government controls the Parliament) on the only arm of governmental power in our society that is designed to uphold justice irrespective of creed or colour.
It can also be argued that it is not only judges and magistrates who are being forced to act in morally repugnant ways, but also lawyers. Prosecutors, for example, will be forced in the case of the 16-year-old youth referred to above to argue that he must go to prison despite the fact it may well amount to torture and cruel and unusual punishment. The youth's lawyer will be similarly constrained.
In short, all the participants in the courtroom in a case involving a mandatory term of imprisonment for a 16-year-old youth with mental illness and associated difficulties are being forced to leave their moral compass at the door of the court in order to satisfy the political cravings of the Baillieu government and its media supporters.
Attorney-General Clark ought to rethink his plan for mandatory sentencing of young offenders convicted of serious assaults - not just because it does not work and leads to injustice, but because he is doing great damage to our democracy by removing the capacity of the courts and those who practise in them each day to accord genuine justice to citizens.